After a nearly month-long hiatus, including time to iron out kinks in the long-overdue new look for this blog, this is the first post of 2023. Happy new year to all!
Freedman v. Freedman, 474 N.J. Super. 291 (App. Div. 2023). The very first sentence of Judge Geiger’s opinion in this appeal rightfully described this as a “sad case.” As the opinion went on to say, the case “involves the disposition of the cremation remains and personal effects of the parties’ son [“Hendrix”], who died unexpectedly and suddenly at age twenty, while attending college in Colorado. The mother [“Colleen”] unilaterally decided to have the body cremated without informing the father [“Richard”] that their son had died, preventing him from participating in that decision and attending the memorial service. The mother has sole possession of the cremation remains and the son’s remaining personal effects and refuses to divide them with the father.”
Richard brought this litigation in the Family Part. The parties had separated, and a Pennsylvania court granted divorce in 2007. Later, both parties moved to New Jersey. Judge Geiger observed that the proper venue for this case was the Probate Part, not the Family Part. That is guidance for future cases of this nature.
Judge Geiger stated that the issue of control over Hendrix’s remains and effects was controlled by the New Jersey Cemetery Act, N.J.S.A. 45:27-1 et seq. Because Hendrix had no will or other directive regarding disposition of his remains, and he had no spouse or children, the Cemetery Act gave authority over the remains to “the surviving parent or parents of the decedent.” But how should a dispute between the surviving parents be resolved?
In issuing its ruling, the panel adopted “a modified version” of the test stated in In re Estate of Travers, 457 N.J. Super. 477 (Ch. Div. 2017), as follows:
“Where parents of a deceased child dispute the funeral arrangements or disposition of remains, the court shall consider the following factors in selecting the person in control under N.J.S.A. 45:27-22:
(1) Which parent is more likely to abide by the decedent’s expressed preferences, if any;
(2) Which parent had a closer relationship with the decedent and is in a better position to deduce the decedent’s preferences and expectations upon death;
(3) Which parent is more likely to adhere to the religious beliefs and cultural practices of the decedent, to the extent that such beliefs and practices pertain to funeral arrangements or the disposal of remains and reflect the decedent’s preferences; and
(4) Which parent will likely be designated administrator of the estate and act in the best interests of the estate relating to the funeral arrangements and disposition of the decedent’s remains.
The trial court must undertake a qualitative analysis of each factor, assign
appropriate weight, and balance the factors.”
Here, Judge Geiger concluded that factors (1), (3), and (4) did not apply. Hendrix had not expressed preferences regarding his remains or effects, neither Hendrix nor his parents had expressed any particular religious beliefs to be considered, and his assets were of “minimal economic value,” so that no estate had been filed with the Surrogate. Factor (2) was thus dispositive.
“As to factor two, Hendrix lived exclusively with Colleen since at least 2015, until he left for college. Although the parties shared joint legal custody, Colleen was designated parent of primary residence. Despite the parties residing in the same municipality, Richard exercised no parenting time after 2016. By any measure, Colleen had the closer relationship with Hendrix at the time of his death and was in a better position to ascertain Hendrix’s … preferences and expectations, even though the parties contested the reasons why that occurred.” Judge Geiger thus ruled, overall, for Colleen.
Richard had asserted that Colleen had prevented him from a fuller relationship with Hendrix. Judge Geiger laid out in detail the contrasting assertions of Richard and Colleen in that regard. He concluded that “[a]lthough the parties presented diametrically opposed versions of their conduct, Richard’s evolving relationship with Hendrix, and the reasons for the erosion of his relationship
with Hendrix, Richard had ample opportunity to seek relief in the Family Part from Colleen’s alleged conduct when his parenting time and ability to communicate with Hendrix was curtailed or prevented from 2016 until Hendrix’s eighteenth birthday. He chose not to do so.”
Richard therefore waived any right to argue as to who had the closer relationship with Hendrix, so that a plenary hearing was not required, and Colleen therefore largely prevailed based on her facts. The panel awarded her control over Hendrix’s cremation remains and ruled that any remaining issues as to Hendrix’s personal effects should be litigated in the Probate Part. Those proceedings were to be handled by a different judge, however, since the judge from whom the appeal was taken had “expressed comments regarding credibility and may have a commitment to her prior findings” (citation omitted).